Mr Jabbar was employed by National Express West Midlands (NEWM) as a bus driver. During his employment, Mr Jabbar drove a bus through a red light at a pedestrian crossing and was dismissed for gross misconduct.
Was the employer entitled to dismiss him in these circumstances?
Jabbar v West Midlands Travel Limited T/A National Express West Midlands
Mr Jabbar was employed by National Express West Midlands (NEWM) as a bus driver from 1 January 1978 until 8 October 2015 when he dismissed for gross misconduct.
On 20 September 2015, Mr Jabbar drove a bus through a red light at a pedestrian crossing. This was found by NEWM on viewing on board CCTV footage in relation to a separate specific complaint about Mr Jabbar’s bus made by a member of public on the same day. In line with NEWM’s standard protocol they reviewed the footage to establish the validity of the complaint and whilst finding that the footage did not corroborate the specific complaint, the segment ran for approximately 10 minutes before and 10 minutes after the alleged incident. This extra footage then revealed the skipping of the red light by Mr Jabbar at the pedestrian traffic lights. NEWM decided to dismiss Mr Jabbar on the grounds of gross misconduct of the traffic light infringement which put him and others at risk on health and safety grounds.
Mr Jabbar brought claims for unfair dismissal maintaining that:
- NEWM’s decision to dismiss him rather than to apply a lesser disciplinary sanction was too severe and outside the range of reasonable responses.
- The decision was inconsistent with cases involving other employees who committed the same or similar offences and yet were not dismissed.
- His conduct was not the real reason for his dismissal but that the allegation of misconduct was a ruse. The real reason for his dismissal was that he was a long-standing employee and a member of NEWM’s final salary pension scheme, a scheme that was closed to new employees in the 1990s, was very expensive to NEWM and he could be replaced by a less costly employee. He summarised that he was therefore dismissed for his age and further because he was Pakistani and that a white British employee would not have been dismissed for such a trivial breach of rules.
Mr Jabbar brought claims for unfair dismissal and direct discrimination on the grounds of age and race.
The Employment Tribunal concluded, unsurprisingly, that the dismissal was unfair. It set out that Mr Jabber’s length of service could not be ignored. Mr Jabber was one of the longest serving bus drivers in NEWM’s employment with 37 years’ service. He had been accident free for at least 32 years and his driving record and disciplinary record were exemplary. Running the red light was a 5 second momentary lapse of concentration on his part by a driver who sits in the cab facing the unpredictable environment of busy city roads 8-10 hours each day. Mr Jabber was also very well respected by his colleagues, including his managers.
Most significantly, when referring to comparators, the Employment Tribunal found that another employee had committed the same offence at virtually the same time and he and Mr Jabber where disciplined only two weeks apart. During the other employee’s incident they actually caused injury whereas Mr Jabber did not. The comparator employee was only given a final written warning while Mr Jabber was dismissed.
For all of these reasons, the Employment Tribunal found that NEWM gave entirely inadequate consideration to the prospect of a warning in Mr Jabber’s case and that his dismissal was disproportionate and outside the range of reasonable responses.
However, it dismissed the claims of age and race discrimination. It found that Mr Jabbar’s membership of NEWM final salary pension scheme did not ever appear to be a part of the dismissal decision. Similarly, it found no evidence of any correlation between Mr Jabber’s race and his dismissal.
The case serves as a reminder of how the test of reasonableness works. Whilst it is common ground that an employee’s misconduct is a potentially fair reason for dismissal, employers must always consider whether a lesser sanction than dismissal would be more appropriate, regardless of the level of misconduct. For example, could a final written warning and additional training deal with the problem satisfactorily?
Employers are required to consider all the circumstances of a case, including the employee’s personal circumstances and decision taken in similar circumstances, before taking a decision to dismiss. Employers should avoid making knee-jerk decisions when faced with an allegation which, on the face of it, could amount to an act of gross misconduct.
In all instances of employee misconduct, employers should consider their own disciplinary procedures and the ACAS Code of Practice on Disciplinary and Grievance Procedures when taking disciplinary action against an employee, particularly when dismissal is a likely outcome of the process. Failure to follow the ACAS Code of Practice could lead to a finding of unfair dismissal and uplift in compensation of up to 25%.
If you have any queries on unfair dismissal or any other Employment Law or HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.